In July, dozens of our paralegals in Kenya had the opportunity to take part in practical legal education sessions led by two organisations working to bring access to justice for all; US-based organisation, the National Institute for Trial Advocacy (NITA), and law firm Jones Day.
NITA Executive Director Wendy McCormack and Mindy Thomas, Director of Membership at the Tennessee Bar, captured their experience of the activities. Including how we're building bridges in adversarial justice systems.
Climbing the legal mountain: Kenya prisons to the summit
It’s Monday. Not my typical day in our fast-paced world. I haven’t been to Starbucks. I haven’t dropped the kids off at school. I’m halfway across the world and it’s the first day of our training at the Maximum-Security Prison in Naivasha, Kenya. The team assembles at 7.30 am. Today is sunny and warm. The drive to the facility is on a two-lane road followed by a long, dusty, and bumpy dirt road. When the prison gates close, we realize this is no longer our land or place but a humbling opportunity to share in a vision of justice and those who choose to defend it.
The prison has loaned us their education building, where we will train legal advocates associated with Justice Defenders. There is no government-supported Public Defender program in Kenya. We’ve partnered with Justice Defenders, a nonprofit charity working across three African countries to bridge the gap in defending the defenseless. Their mission is to support those facing injustice by defending justice within defenseless communities in Africa through legal education, training, and practice. They train incarcerated people and prison guards as paralegals to work with Justice Defenders’ own pool of legal officers. These three groups come together to support the legal needs of incarcerated people throughout Kenya’s prison system: reviewing their cases, helping prepare for trial and appeals, helping people understand what they have been charged with, understanding the facts of the case, and seeking justice.
Now, this community of advocates has gathered to learn trial advocacy skills from the National Institute for Trial Advocacy (NITA) and the law firm of Jones Day, who have brought lawyers to Naivasha from the US and other parts of Kenya.
The bus ride to the prison is not long. The streets are full of people walking to work and school in Naivasha. Ret. Judge Ann Williams from Jones Day, Miriam Wachira from Justice Defenders, and I meet with the Officer in Charge, Mr. Hassan Tari. The greeting is short and includes the customary offering of tea and small bites before we join the others and proceed through security to meet with the participants for the first time.
The participants are a mixed group of prison officers, legal officers, and incarcerate people trained as paralegals from the Naivasha Women’s Prison, the medium-security prison, and the maximum-security prison. We are greeted with enthusiasm, curiosity, and a crackle of nervous energy. The participants are as passionate about learning as we are about teaching them.
The day begins with an overview of the planned topics: introduction to examination-in-chief, cross-examination, case analysis, and developing a theory and theme. We start with a simple exercise, pairing up participants and having them practice open-ended questions (examination-in-chief or direct examination). The faculty encourages the participants to focus on who, what, where, when, why, how, tell, describe, and explain. The exercise is followed by a brief demo of cross-examination and the concept of leading questions or questiments. Case analysis involves breaking into two large groups, one for the prosecution and one for the defense, to discuss the good facts and bad facts of the case. From there, it’s time to test some theories and create a theme that evokes emotion with the judge.
Our faculty’s challenges primarily revolve around understanding the Kenyan legal system, ensuring language and accent barriers don’t impede the learning and understanding of the participants, and cultural variances. The participants are soft-spoken and need some encouragement to speak up. The faculty work hard at slowing down, responding with quiet reassurance, and positive reinforcement. We see the participants gain confidence throughout the program.
Lunch is served under a tent in the open space. Guard, incarcerated people, legal officers, and trainers all gather to share our meal, chatting about legal topics or family, sharing stories and experiences. It’s beautiful to watch the trust, compassion, and humanity of these people as they welcome our faculty. I am inspired by how eager they are to learn and grow. We have much to learn from them about our prison systems.
At lunch, I ask a couple prison officer participants how the case analysis session went. The prison guard playing the prosecutor says, “The case is weighed in favor of the defense.” His colleague on the defense exclaims, “Fear. That is pure fear speaking.” And laughing ensues. I also ask one of our NITA faculty members, Hon. Michael Washington, about his takeaway from the morning session and he explains, “How important is it to know the facts so you can determine the most important ones and how important it is to know the law.”
It’s incredible to see the guards, legal officers, and incarcerated paralegals in a workshop learning and practicing together.
After lunch, we concentrate on cross–examination, where witness control is imperative. The faculty focuses on the six attack categories for cross: perception, memory, bias, untruthful character, prior inconsistent statement, and contrary facts. After cross-examination, we move to practicing exhibits and the exhibit dance.
The participants are eager and willing to try. They are quick learners, implementing direct feedback they receive as well as incorporating the feedback others are receiving. It’s a joy to watch them come out of their shell, project so they can be heard, and see them celebrate each other’s successes, and work on struggles together.
You wouldn’t know we were inside a prison at all if it weren’t for the headcount that happens a few times throughout the day to ensure all of those incarcerated are accounted for.
Days two through four continue in this format: presenting, demoing, and practicing on impeachment; more examination-in-chief; cross; exhibits; and diving into the experts, opening statements, and closing arguments. Day five is trial day. We remain fluid with schedule changes and adapt to accommodate when key guests can join us, including the Assistant Commissioner of Prisons Legal Director, Mr. Dickson Mwakazi and the Chief Justice and President of the Supreme Court of Kenya, Martha K. Koome.
We visit the women’s prison, where there are 64 incarcerated people. Children are allowed to live with their incarcerated mothers until age four, so childish laughter lightens the feel of the surroundings. We tour the Justice Defenders office, which includes the necessary equipment and space to conduct virtual hearings, intake interviews, a room for alternative dispute resolution (ADR), and a small library.
We are moved by the relationship, bond, and partnership between the guards, incarcerated people, and legal officers. The joint goal of rehabilitation and creating the best opportunity to defend is apparent throughout all our interactions. Our incarcerated attendees are in prison uniforms—some with orange sweaters indicating they are a paralegal, some in full-blue outfits. Legal officers may don the red Justice Defenders hoodie (or romper as they say in Kenya), and prison officers are in their guard uniforms. Yet the separate groups mingle, talking and encouraging each other throughout the training. We trained 11 legal officers, 27 prison guards, and 25 incarcerated people.
At the end of each day, we go around and ask attendees what they took away from the day of learning. Day two an incarcerated person commented, “I am better at cross-examination today then I was yesterday.” This is NITA magic in action.
I was also blessed with an opportunity to understand the Kenyan people, culture, and land by a voyage up and over the magnificent Mount Kenya. Four days of climb, summit, and descent paralleled the courage, challenges, and beauty of our time at Kenya Prison Services. The simplicity of the food was fuel for body and soul as each step opened our eyes to the challenges that we were overcoming.
What is to become with each step? What is at the top of the summit or around the next corner we don’t know. All we understand is that the footprints we leave can make lasting changes like those who share the skills they learned with others who are incarcerated and guards. Just as the people who blazed the Mount Kenya trail—and the people who followed in their footsteps, improving the trail, and smoothing the path—made it possible for me to climb, so have the lessons of more than 50 years of NITA that made it possible for us to share these skills with people in Kenyan prisons. In a place bereft of government-supported defense counsel, legal help can now come not from an expert to a novice but from those who have taken these steps, the NITA training, and are willing to pay it forward.
And that help will not come only from those who are incarcerated. The relationship between guards and incarcerated people surprised us. The guards took on the role of advocates and saw those who are incarcerated as people trying to make right and find their way to a better life. The humanity and respect between these two groups is admirable. The U.S. prison system would benefit from following their example.
There are no words adequate to describe what I—what we all—learned from this experience. The challenges presented will encourage me to find more ways to further justice and to climb mountains one step at a time.